https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10889

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KITALE** **SUCCESSION CAUSE NO.115 OF 2015** **IN THE MATTER OF THE ESTATE OF BENJAMIN TALI NAMASAKA (DECEASED)** **BEN TALI NAMASAKA…………………...OBJECTOR/RESPONDENT** **VERSUS** **MURABWA TALI NAMASAKA……….1ST PETITIONER/APPLICANT** **SABINA NANDUTU TALI………….2ND PETITIONER/RESPONDENT** **CHEPTE TALI NAMASAKA……….3RD PETITIONER/RESPONDENT** **ROSE NYONGESA TALI………….4TH PETITIONER/RESPONDENT** **RULING** 1. MURABWA TALI NAMASAKA, the petitioner/applicant herein has come to this court through summons dated 10/11/23 for the following prayers/orders; 2. ***That the consent order issued on 7/12/2022 and made on 4/7/2022 be set aside.*** 3. ***That the order issued on 23/6/2016 be reviewed, set aside and/or stayed pending the hearing and determination of this cause.*** 4. ***That this matter to proceed as an intestate cause.*** 5. ***That Elizabeth Zaina is not a dependant or a beneficiary under Section 29 of Law of Succession Act.*** 6. ***That what has been disposed of after the consent of 4th July, 2022 be put into consideration during final distribution.*** 7. ***Costs*** 8. The applicant has listed the following grounds as the basis of this application namely; 9. *That he is a first born son of the deceased and 1st petitioner herein.* 10. *That the consent order made on 4/7/2022 was obtained fraudulently and by misleading the court that parties had agreed.* 11. *That the applicant was not present on 4/7/2022 when the consent was recorded.* 12. *That he was not aware of the consent until 22/12/2022 when the consent was annexed to objector’s replying affidavit sworn on 20/12/2022 in response to 1st petitioner/applicant’s application dated 3/11/2022.* 13. *That the applicant’s counsel was absent when the consent was recorded.* 14. *That there is no record of service to show that the applicant or his counsel was served.* 15. *That he has a right to be heard.* 16. *That the Will was invalidated.* 17. *That moveable assets were sold and proceeds of Kshs.890,000/- were shared equally among all the beneficiaries.* 18. *That Elizabeth Zaina is not a daughter of the deceased and not a dependant though she was included as a beneficiary.* 19. *That he is aware that some dependants have sold part of their shares which should be factored in during distribution.* 20. *That although he had been gifted 60 acres in the impugned Will he was ready to accept 40 acres plus Webuye Plot No. 24.* 21. *He has given further proposals on how the estate of the deceased should have been distributed.* 22. He contends that he was not a party to the partial distribution of the estate and that his counsel then on record was also not party to it. 23. He concedes that the Will left behind by the deceased was invalidated in this cause on 11/10/2012 and the cause was then directed to proceed as intestate proceedings. 24. He further admits getting a share of the proceeds of sold assets which were sold at Kshs.890,000/. 25. The respondents Ben Namasaka Tali and Sabina Nandutu Tali have opposed this application through respective replying affidavits. 26. Ben Namasaka Tali vide replying affidavit sworn on 23/11/2023 depones that this application has been filed after inordinate delay and without any explanation. 27. He depones that the applicant has not disclosed the specifics of fraud, who committed the fraudulent acts and who was defrauded. 28. He avers that the application is an afterthought after the applicant failed to get extra 15 acres he was demanding from other beneficiaries. 29. He depones that the consent was recorded following mediation by court on 4th July 2022 and that the applicant was represented by Mr Murgor adding that the said Mr Murgor has not sworn an affidavit to deny service adding that service then was done via email as was the norm during post Covid 19. 30. He further avers that the distribution of the estate was done through various consents including one done in court on 19/5/2021 by Justice Kimaru which resulted into applicant being given Plot No.24 Webuye. 31. He contends that the proceedings herein have been going on as intestate proceedings. 32. He avers that Elizabeth Zaina Tali is one of their sisters and that both Justice Kimaru and Justice Chemitei found her to be one of the beneficiaries. 33. He concedes that he is one of the beneficiaries who has sold part of his share of the estate and that each son was given 25 acres each including the applicant. 34. He depones that the estate of the deceased herein has been distributed fully including the money which has been shared out equally as directed by the court. 35. He faults the applicant for bad faith contending that he is one of the biggest beneficiaries and should not be complaining. 36. Sabina Nandutu Tali on her part avers that the applicant is being vexatious. 37. She avers that the consent order that the applicant seeks to set aside was arrived at after a lengthy and tedious engagement of all beneficiaries in presence of Justice Kimaru and that all beneficiaries were present save for the applicant who resides in the U.S.A. 38. She depones that the applicant was represented by Mr Murgor Advocate and that is why Mr Murgor has not sworn an affidavit denying service. 39. She avers that the interests of the applicant were well taken care of as he even got a bigger share of the estate as compared to other beneficiaries. 40. She contends that the applicant has already sold the Webuye Plot No.24 and received cash which benefit was made possible by consent order. 41. She maintains that the question of Elizabeth Zaina Tali was settled by court vide judgment dated 5/5/2020 and there was no appeal preferred. 42. This court has considered this application and the response/opposition made by the respondents. 43. This cause from the record has seen long and protracted disputes given the size of the estate and the fact that the deceased was married to 3 wives. To get all the dependants from the 3 houses to agree has been a tall order owing to varied interests. 44. The main grievance of the applicant is that the consent entered on 4/7/2022 was fraudulent and entered without his consent. 45. He however has not given the particulars of fraud or stated who was fraudulent in the consent entered. This court finds that the respondents’ views that the impugned consent was reached after prolonged mediation by Justice Kimaru to be correct because Justice Kimaru has clearly indicated so on record. The mediation in my view was well intended and informed of the long protracted battles among the beneficiaries in this cause. 46. This court finds that the consent reached on 4/7/2022 was largely fair and just to all the beneficiaries. The applicant like all the sons of the deceased was given 25 acres of the estate in addition to Plot No.24 Webuye. The respondents have sworn an affidavit that he has already sold the plot in Webuye and benefited from the proceeds thereof. He has not sworn an affidavit to contest that fact. Therefore if he has acted on the consent order made and benefited from it, then he has acquiesced to the consent even if he was not there when the consent was recorded. He cannot turn around to impugn it again. The applicant cannot seek to have his cake and eat it at the same time. 47. Secondly the applicant as deposed by the respondents was represented by an advocate, Mr Murgor at the time and the said advocate has not sworn an affidavit to state that he was kept in the dark or was unaware of when the matter was slated for hearing (4/7/2022). 48. Thirdly and more importantly, the distribution done vide consent was equitable and fair to all the beneficiaries. Contrary to the allegations that there was fraud, there is nothing fraudulent in the said consent. The applicant got 25 acres of the estate when some of the beneficiaries were getting 5 acres. He might have gotten 25 acres on account of his gender but the law and the Constitution of Kenya pays no regard to gender. The applicant and the other sons should therefore be very grateful to Justice Kimaru for the mediation efforts that saw the daughters accepting less the share in the estate as compared to the boys. 49. With regard to prayer (2) for review of order issued on 23/6/2016, this court finds that the prayer is unsustainable because of the following reason namely; 50. ***Inordinate and unexplained delay.*** The power to review granted to this court under the provisions of Order 44(1) Civil Procedure Rules can only be exercised inter alia where an applicant comes to court timeously without unreasonably delay. The applicant filed this application on 16/11/2023 more than 7 years after the impugned order was made on 23/6/2016. He has not given reasons for the inordinate delay. He has failed to meet the conditions set for review. 1. The applicant has also not demonstrated that there is new discovery of evidence or facts that were not within his knowledge upon exercise of due diligence when the order was made. 2. He has not also shown any good cause or at all why the prayer (2) should be granted. The prayer for review therefore fails for lack of merit. 3. In regard to prayer (3), this court finds the prayer superfluous because when the Will was revoked in this cause, the matter proceeded as intestate proceedings. The prayer is therefore frivolous as it serves no purpose. 4. The applicant’s prayer that Elizabeth Zaina Tali be found not to be a beneficiary is also unsustainable because as well stated by the respondents the issue is res judicata in light of judgment of Justice Chemitei dated 5/5/2020 in this cause. The judgment was not challenged and this court is now functus officio in so far as that issue is concerned. In the premises this court finds no merit in the application dated 10/11/2023 in its entirety. The same is clearly an afterthought and it is dismissed with costs to the respondents because of the vexatiouness of the applicant. **DELIVERED, DATED** and **SIGNED** at **KITALE** this **……20th .…** day of **………………JULY……….……………., 2026.** **HON JUSTICE R.K. LIMO** **KITALE HIGH COURT** ***Ruling delivered in open court*** ***In the presence of*** ***Gemenet for 2nd administrator*** ***Mukabane for 1st petitioner/applicant*** ***Khayo for 3rd petitioner*** ***Duke/Chemosop***